Even Lawyers Make Predictions: Music Laws to Watch in 2017

‘Tis the season, after all, to take stock of all that came before in the god-forsaken year that was 2016 and read the tea leaves to make predictions as to what will come in 2017. It’s no different for lawyers and artists, watching to see what will happen in a number of court cases pertaining to music law in the New Year.

But stepping aside from the courts for a moment, let’s not forget that with the new incoming administration, the survival of net neutrality in the US is anything but guaranteed. If anything, it’s just a matter of knowing the name of the person to be selected as the Federal Communication Commissioner to get a sense of whether the regulations will be repealed entirely or just gutted. Net neutrality essentially guarantees that service providers can’t charge tolls to users for going to websites they don’t own and, as currently regulated, views internet service as a utility like electricity or water. The new administration has been open about its disregard for net neutrality and its protections—as noted by Washington Post reporter Brian Fung just days after the election, Donald Trump vowed to “eliminate our most intrusive regulations” and “reform the entire regulatory code,” pointing to net neutrality in particular as a “top down power grab.”

This is fully in keeping with many Republican’s position in net neutrality, which has been hailed as “a solution in search of a problem” more times than can or should be counted. What’s worse, as Fung reported, many top executives from Silicon Valley were strongly in Hillary Clinton’s corner, despite most of them appearing at a meeting with Trump in Washington, DC, a few weeks back. Fung wrote that policy analysts believe the Trump administration “will instead delete from history the Federal Communication Commission’s unprecedented regulations for Internet providers.”

Tom Wheeler, the FCC commissioner under President Obama who had previously served as an executive at Verizon and who prompted concerns about net neutrality early in his tenure before proving himself a staunch supporter and fighter for the cause, tendered his resignation shortly after the election, as is normal.

Now, there are numerous other legal and regulatory items to keep on your radar as the clock strikes 12 and kills 2016 once and for all. (Good grief, this year, right?)

Steve Marks, general counsel for the Recording Industry Association of America, recently gave The Hollywood Reporter a rundown on the items he hopes to see settled in the New Year along with new legal situations that could arise and throw the industry into a tailspin – or, possibly, make things more stable.

In addition to keeping an eye on the lawsuit between Capitol Records and Vimeo which, among other things, could finally give some clarity on whether the Digital Millennium Copyright Act’s safe harbour provisions apply to songs published before 1972, Marks noted the following lawsuits as top priorities for the music industry:

Establishment of new rates for satellite radio services will be in place by December 2017 and will apply to 2018-2022. SoundExchange, which represents artists and labels, wants SiriusXM to pay fees more closely aligned to what the open market would charge, negating a longstanding subsidy that has benefited SiriusXM.

Protections against “stream ripping” to ensure artists are paid for songs that are ripped from services like Pandora or Spotify and downloaded without paying for them. Marks said he expects a lawsuit filed in 2016 will pick up steam in 2017.

The longstanding fight over 100 percent licensing and consent decrees with BMI, ASCAP and record labels. “The ruling will have a significant impact on performance licenses for compositions because a 100 percent licensing rule could result in a race to the bottom that reduces rates for songwriters,” the article notes.

Another item not mentioned in Marks’ article but of longstanding interest on this website is the Supreme Court case regarding The Slants, a Portland, Ore.-based band fighting the US Patent and Trademark Office over the ability to trademark its name. The case is slated to be heard by the still-one-judge-short-of-a-full-panel court in January, just days before the inauguration. Look for a full report on briefs filed in this case within the next few days.

Also? Don’t forget that President Obama recently signed a law making it a criminal offense to use ticket bots. That law took effect immediately but a similar one signed by New York State Governor Andrew Cuomo won’t come into play until late February. Will either law help fans get access to better tickets without having to deal with resellers, scalpers or secondary seller sites? Stay tuned.